478 F.

3d 531

UNITED STATES of America

v.
Ira KUKAFKA, Appellant.
No. 05-1955.

United States Court of Appeals, Third Circuit.

Submitted pursuant to Third Circuit LAR 34.1(a) December 13, 2006.
Filed: March 6, 2007.

George S. Leone, Sabrina G. Comizzoli, Mark E. Coyne, Office of the

United States Attorney, Newark, NJ, for Appellee.
David E. Schafer, Office of the Federal Public Defender, Trenton, NJ, for
Appellant.
Before: FUENTES and VAN ANTWERPEN, * Circuit Judges, and
PADOVA,** District Judge.
OPINION OF THE COURT
FUENTES, Circuit Judge.

In 1996, after fourteen years of marriage, Ira Kukafka abandoned his wife and
four children in New Jersey and fled to Florida where he shared an apartment
with his mother. Eight years later, owing over $125,000 in outstanding child
support, Kukafka was indicted by a New Jersey Grand Jury for willful failure
to pay his support obligation in violation of the federal Child Support Recovery
Act, 18 U.S.C. 228. Kukafka was convicted and sentenced to two years in
prison and $145,337 in restitution. On appeal, Kukafka's primary challenge is
that, following the Supreme Court's decision in United States v. Morrison, 529
U.S. 598, 120 S.Ct. 1740, 146 L.Ed.2d 658 (2000), the Child Support Recovery
Act exceeds Congress's power under the Commerce Clause. He also contends
that a provision in his divorce judgment requiring him to obtain an
ecclesiastical divorce violates the Free Exercise Clause of the First
Amendment. Further, he claims that the District Court's jury instruction on
willfulness improperly stated the government's burden of proof. We reject these

contentions and will affirm the judgment of conviction.

I. Background
2

Ira Kukafka is a trained electrical engineer, with an undergraduate degree from

the City University of New York and a Master's degree from Fairleigh
Dickinson University. He also has several credits toward a PhD at the New
Jersey Institute of Technology. During the 1970's and 1980's, Kukafka worked
as an engineer for AT & T and then for the United States Army. In 1982, he
married Esther Bailey and moved to a house in Oakhurst, New Jersey. The
couple have four children.

In 1984, Kukafka left engineering to go into the real estate business with his
father-in-law, Harry Bailey. After ten years, and facing increasing financial
difficulty, the partnership dissolved because of a bad real estate venture. The
bank foreclosed on Kukafka's house, which had been used as collateral for part
of the deal, forcing him and his family to move in with his in-laws. Over the
next two years, financial difficulties and family pressures led to problems in
Kukafka's marriage. He worked only intermittently, and two of his children
were diagnosed with serious illnessesone with retinal blastoma resulting in
the loss of an eye, and the other with a congenital stomach disorder and a
severe developmental disability. In mid-1996, after a fight with his father-inlaw, Kukafka left his family to stay with his sister in New York. Soon thereafter
he moved to Florida and, from that time forward, had only sporadic contact
with his children.

In 1997, Esther Bailey commenced divorce proceedings against her husband.

Kukafka did not contest the divorce and the Superior Court of New Jersey
entered a default Judgment of Divorce ("Divorce Decree"). Among other
things, the Divorce Decree required Kukafka to pay $400 per week in child
support, $350 per week in alimony, for an ecclesiastical divorce, and to
maintain health insurance for his children.

From 1998 to 2004, Kukafka consistently failed to make child support

payments. He made no payments in 2004, the year this action was commenced.
During the period he was in default, Kukafka was living with his mother and
had no rent or basic living expenses. Although he applied for various positions,
his only employment was one week of work in December 2000, for which he
earned about $2,900. Kukafka also earned sporadic income from an assortment
of odd jobs, such as providing driving service to the elderly. Around this time,
Kukafka was also diagnosed with depression and diabetes.

By August 2004, Kukafka had paid only $1,657 in child support and owed
$127,343 in outstanding payments. Except for $157 in 2001, every payment
Kukafka made was pursuant to court order following contempt proceedings in
Florida.1 These payments were the minimum amount needed to avoid being
sent to jail for ninety days. During the contempt proceedings, Kukafka claimed,
among other things: that he should not have to pay child support; that his exwife earned enough on her own to support their children; that he was unable to
obtain suitable employment; that he was awaiting returns on several real estate
ventures; that he was pursuing needed licensing and education; and that his
illnesses prevented him from finding work. He was repeatedly admonished to
make efforts to find work and to pay the $400 per week obligation.

Ultimately, a grand jury indicted Kukafka on two counts of knowing failure to

pay child support. Count I charged Kukafka with willful failure to make
support payments from December 1997 until June 23, 1998 in violation of 18
U.S.C. 228(a)(1). Count II charged him with willful failure to provide support
from June 24, 1998 until August 20, 2004 in violation of 18 U.S.C. 228(a)(3).
After a two-week trial, a jury found Kukafka guilty of both counts and made a
supplementary finding that he had violated one or more specific court orders.
The District Court sentenced him to two years in prison, one year of supervised
release, $145,337 in restitution, and a $200 special assessment. This appeal
followed. We have carefully reviewed the numerous issues Kukafka raises. Of
these, the four relating to the Child Support Recovery Act warrant discussion.
His other arguments are without merit and require no further discussion.

II. Discussion
8

The Child Support Recovery Act of 1992, as amended by the Deadbeat Parents
Punishment Act of 1998, Pub.L. No. 105-187, 112 Stat. 618 (1998) (hereinafter
"the Deadbeat Parents Act," or "the Act"),2 makes it a federal crime to willfully
fail to pay a child support obligation to a child in another state.3 The Act was
intended by Congress to strengthen state efforts to enforce child support
obligations against parents who flee across state lines. Specifically, the Act
"addresses the growing problem of interstate enforcement of child support by
punishing certain persons who intentionally fail to pay their child support
obligations." See H.R.Rep. No. 102-771, at 4 (1992). See generally United
States v. Kramer, 225 F.3d 847, 856 (7th Cir.2000) (discussing the legislative
history of the Child Support Recovery Act). Congress intended its 1998
amendments to further enhance these efforts by making certain violations
punishable as felonies. See 144 Cong. Rec. S5734-02 (1998) (statements of
U.S. Senators discussing need for more serious punishment for failure to pay
child support).

Kukafka was convicted under 228(a)(1) and (a)(3). Under 228(a)(1), if a

child support obligation remains unpaid for longer than one year, or is greater
than $5000, the offender is subject to six months' imprisonment. 18 U.S.C.
228(a)(1), (c)(1). Under 228(a)(3), if the child support obligation remains
unpaid for longer than two years, or is greater than $10,000, the offender is
subject to two years' imprisonment. 18 U.S.C. 228(a)(3), (c)(2). By their
terms, these provisions apply only to "interstate" support obligations.

10

The District Court had jurisdiction under 18 U.S.C. 3231. We have

jurisdiction under 28 U.S.C. 1291 and 18 U.S.C. 3742(a). See United States
v. Tykarsky, 446 F.3d 458, 464 (3d Cir.2006).
A. Commerce Clause

11

Kukafka argues that the Deadbeat Parents Act exceeds the scope of Congress's
power under the Commerce Clause and violates the Tenth Amendment of the
U.S. Constitution. Because he challenges the constitutionality of the Act, we
exercise plenary review over the District Court's assertion of federal
jurisdiction. United States v. Singletary, 268 F.3d 196, 198-99 (3d Cir.2001).

12

In United States v. Lopez, 514 U.S. 549, 115 S.Ct. 1624, 131 L.Ed.2d 626
(1995), the Supreme Court held that the Gun-Free School Zones Act of 1990
exceeded Congress's authority under the Commerce Clause. The Court
identified "three broad categories of activity" that Congress may regulate: (1)
"the use of the channels of interstate commerce," (2) "the instrumentalities of
interstate commerce, or persons or things in interstate commerce," and (3)
"those activities that substantially affect interstate commerce." Id. at 558-59,
115 S.Ct. 1624. Focusing on the third category, the Court concluded that
"possession of a gun in a local school zone is in no sense an economic activity
that might, through repetition elsewhere, substantially affect any sort of
interstate commerce." Id. at 567, 115 S.Ct. 1624.

13

In United States v. Parker, 108 F.3d 28 (3d Cir.1997), we considered Lopez, as

well as our own Commerce Clause precedent, and held that the Deadbeat
Parents Act was a constitutional exercise of Congress's power. We explained
that:

14

Failure to make required payments gives rise to a debt which implicates

economic activity. This is an instance where "local activities ... are . . . part of a
national problem with a substantial impact upon interstate commerce." It is
significant that the legislative history underlying the Act establishes that state

efforts have been inadequate to ensure that payments owed are actually made
and that, as a result, annual obligations covered by the Act total billions of
dollars. Finally, unlike the statute the Court reviewed in Lopez, the [Deadbeat
Parents Act] involves an unbroken chain of interstate events which begins when
one parent crosses state lines and ends with interstate collection efforts.
15

Id. at 31 (quoting United States v. Bishop, 66 F.3d 569, 584 (3d Cir.1995)).
Based on this reasoning, we recognized that, although failure to pay child
support might be a local activity, it is part of a national economic problem that
substantially affects interstate commerce. Consequently, we concluded that the
statute "falls within the scope of congressional authority under the Commerce
Clause." Id. at 30.

16

Kukafka contends that Parker was effectively overruled by United States v.

Morrison, 529 U.S. 598, 120 S.Ct. 1740, 146 L.Ed.2d 658 (2000). In Morrison,
echoing "both the holding of Lopez and its underlying reasoning," the Supreme
Court struck down portions of the Violence Against Women Act ("VAWA").
United States v. Whited, 311 F.3d 259, 266 (3d Cir.2002). In concluding
VAWA was unconstitutional, the Court emphasized that intrastate, "[g]endermotivated crimes of violence are not, in any sense of the phrase, economic
activity." Morrison, 529 U.S. at 613, 120 S.Ct. 1740. Although it did not adopt
a categorical rule, the Court reasoned that Congress could not regulate noneconomic conduct "based solely on that conduct's aggregate effect on interstate
commerce." Id. at 617, 120 S.Ct. 1740; see also Whited, 311 F.3d at 266.

17

Focusing on the third Lopez category, "the Court provided a framework to

determine whether a law regulates intrastate activity that has a substantial effect
on interstate commerce." United States v. Gregg, 226 F.3d 253, 262 (3d
Cir.2000) (citing Morrison, 529 U.S. at 609-13, 120 S.Ct. 1740). Under this
framework, a court should consider: (1) "the economic nature of the regulated
activity;" (2) "a jurisdictional element limiting the reach of the law to a discrete
set of activities that additionally has an explicit connection with or effect on
interstate commerce;" (3) "express congressional findings regarding the effects
upon interstate commerce of the activity in question;" and (4) "the link between
the regulated activity and interstate commerce." Gregg, 226 F.3d at 262. In
assessing these factors, our task is to determine whether a "rational basis" exists
for concluding that the regulated activities, taken in the aggregate, substantially
affect interstate commerce. See Gonzales v. Raich, 545 U.S. 1, 22, 125 S.Ct.
2195, 162 L.Ed.2d 1 (2005).

18

With this in mind, the Deadbeat Parents Act clearly regulates an activity having
a substantial effect on interstate commerce. First, the activity regulated under

the Act is commercial, or economic, in nature. As characterized in Parker,

failure to fulfill a financial obligation "gives rise to a debt which implicates
economic activity." 108 F.3d at 31. Second, by regulating only obligations to
out-of-state children, the Act contains an explicit jurisdictional element that
limits its reach to interstate transactions. Id. at 30-31. Third, the Act was passed
after express legislative findings about the effect of unpaid child support on
interstate commerce. Indeed, when Congress passed the Act, the amount of
unpaid child support had reached into the billions of dollars and amounted to a
national problem adversely affecting interstate commerce. See H.R.Rep. No.
102-771, at 4-6 (1992) (discussing economic impact of failure to pay interstate
child support). This same legislative history highlights the "link" between the
national problem addressed by Congress and the legislation it passed. See
Gregg, 226 F.3d at 262-63.
19

We therefore have no trouble determining that a rational basis exists for

concluding that failure to make interstate child support payments substantially
affects interstate commerce. Accordingly, even after Morrison, the Deadbeat
Parents Act falls within Congress's power under the third Lopez category.

20

The constitutionality of the Deadbeat Parents Act is unaffected by Morrison for

the additional reason that the Act falls under the second Lopez category, which
was not addressed by Morrison. See United States v. MacEwan, 445 F.3d 237,
244-45 (3d Cir.2006). Under the second category, Congress may regulate
"persons or things in interstate commerce." The child support payments
regulated by the Deadbeat Parents Act are "things," which are interstate in
nature because they must normally be transmitted through instrumentalities of
interstate commerce "by mail, by wire, or by electronic transfer." Parker, 108
F.3d at 31. Moreover, the "persons" targeted by the Act are those who, like
Kukafka, intentionally avoid payment by traveling across state lines. See
H.R.Rep. No. 102-771, at 5 (1992) (explaining that "chances for successfully
avoiding such payments increase markedly when [parents] cross state lines.").
By targeting interstate child support obligations alone, Congress has ensured
the Act regulates only those payments in interstate commerce and those persons
who avoid their obligations by traveling across state lines.

21

The Act covers "persons or things" in interstate commerce, even though it

punishes only those who have "willfully fail[ed] to pay a support obligation."
28 U.S.C. 228(a) (emphasis added). That is, by criminalizing an individual's
willful failure to pay, the Deadbeat Parents Act encourages the payment of
interstate debts. See H.R.Rep. No. 102-771, at 6 (stating that Act promotes
payment by "taking the incentive out of moving interstate to avoid payment.").
In this way, the Act prevents "frustration of an interstate commercial

transaction that otherwise would have occurred absent the defendant's

dereliction." United States v. Bailey, 115 F.3d 1222, 1229 (5th Cir.1997). Such
discouragement of willful efforts to frustrate interstate commerce is a valid
exercise of congressional power under the Commerce Clause. See United States
v. Sage, 92 F.3d 101, 105-06 (2d Cir.1996) ("If Congress can take measures
under the Commerce Clause to foster potential interstate commerce, it surely
has power to prevent the frustration of an obligation to engage in commerce.");
United States v. Faasse, 265 F.3d 475, 486-87 (6th Cir. 2001).
22

We therefore conclude that the Deadbeat Parents Act properly regulates

"persons or things in interstate commerce." See United States v. King, 276 F.3d
109, 113 (2d Cir.2002) (finding the Act regulates a "thing in interstate
commerce" even after Morrison); United States v. Klinzing, 315 F.3d 803, 80608 (7th Cir.2003) (same).4

23

In sum, we reject Kukafka's argument that Morrison overrules our conclusion in

Parker that the Act is constitutional. Instead, we conclude that the Deadbeat
Parents Act is a constitutional exercise of congressional power under the second
and third categories of Lopez.5
B. Collateral Challenge

24

Kukafka next argues that his indictment must be dismissed because the Divorce
Decree containing his child support obligation includes a requirement that he
obtain an ecclesiastical dissolution of marriagespecifically, a "Get".6 He
contends that this provision interferes with his free exercise of religion under
the First Amendment of the Constitution. The District Court ruled that Kukafka
could not attack the indictment by collaterally challenging the Divorce Decree.
Our review is plenary. Singletary, 268 F.3d at 198-99.

25

The Deadbeat Parents Act requires that a defendant be subject to a "support

obligation," which is defined as:

26

any amount determined under a court order or an order of an administrative

process pursuant to the law of a State or of an Indian tribe to be due from a
person for the support and maintenance of a child or of a child and the parent
with whom the child is living.

27

18 U.S.C. 228(f)(3). According to this plain language, Kukafka is subject to a

state court order obligating him to pay for the "support and maintenance of a
child." Kukafka does not contest that he is subject to such an order.

28

Rather, Kukafka challenges the provision in that order requiring him to pay for
a Get. He argues that, because of the unconstitutionality of the Get provision,
the entire Divorce Decree, which contains the support obligation, must be
invalid. Because the decree is invalid, he claims, his indictment should be
dismissed.

29

We see no merit to this collateral challenge. Regardless of the constitutionality

of the Get provision, Kukafka's conviction is based upon his support obligation,
which is wholly unrelated to and plainly separate from any obligation that he
pay for the Get. Clearly, a federal prosecution under the Deadbeat Parents Act
is not the appropriate arena in which to litigate the terms of Kukafka's divorce.
To sustain a conviction, the Act does not require a federal court to ensure the
validity of each aspect of the underlying court order containing the support
obligation. See United States v. Brand, 163 F.3d 1268, 1275-76 (11th
Cir.1998); cf. United States v. Leuschen, 395 F.3d 155, 159 (3d Cir. 2005) ("[18
U.S.C. ] 922(g)(1) prohibited Leuschen from possessing a firearm on account
of his 1989 state conviction, irrespective of the validity of that conviction.").7 If
it did, a federal prosecution under the Act would become an avenue for relitigating substantive issues of state family law. Congress certainly did not
intend to entangle the federal government in such matters that are traditionally
the province of state courts. See United States v. Molak, 276 F.3d 45, 50 (1st
Cir. 2002) ("Domestic relations and family matters are, in the first instance,
matters of state concern, and it would be odd for Congress to second-guess the
determinations of the state courts as to the appropriate scope of child support
obligations.") (citation omitted); Bigford, 365 F.3d at 869 ("There is a strong
common law presumption that the federal government should not become
involved in determinations of substantive issues of family law.").

30

In sum, the constitutionality of the Get bears no relevant relationship to the

indictment in this case, and we see no reason to indulge Kukafka's effort to
litigate this unrelated issue. Accordingly, we reject his collateral challenge to
prosecution under the Deadbeat Parents Act.8

31

Our conclusion is supported by the fact that Kukafka has failed to present any
evidence that he ever contested payment of the Get in state court proceedings.
Indeed, as the government points out, and Kukafka does not dispute, he has
already paid for his wife to obtain the Get. That payment, the only payment in
this case that he willingly made, provides no basis for a subsequent collateral
challenge to his federal prosecution under the Deadbeat Parents Act.
C. Jury Charge

32

Kukafka argues that the District Court erred in instructing the jury on the
willfulness element of the Deadbeat Parents Act. Specifically, he objects to the
District Court's instruction that:

33

[i]n determining whether the defendant acted willfully, you must first find that
the defendant had the ability to pay the child support.

34

...

35

This element of the offense is satisfied if you find that the defendant had the
ability to pay any part of his child support, even if he did not have the entire
amount which he was ordered to pay.

36

(App. at 1018.) Kukafka argues that the instruction lowered the government's
burden of proof by allowing the jury to find a willful violation "merely by
determining that [he] had a spare quarter in his pocket one day in the year ...."
(Appellant's Br. at 22.) Although Kukafka objected to this instruction before the
District Court, he did so on a different basis;9 accordingly, our review is for
plain error. United States v. Zehrbach, 47 F.3d 1252, 1260 (3d Cir.1995). In our
review, we consider the totality of the instructions on willfulness, not focusing
on a particular paragraph in isolation. See United States v. Coyle, 63 F.3d 1239,
1245 (3d Cir.1995).

37

The "ability to pay" is not an element of a Deadbeat Parents Act offense.

Instead, "inability to pay ... provides a defense to liability ... and the defendant
is free to present evidence that ... his income was not sufficient, after meeting
his basic subsistence needs, to enable him to pay any portion of the support
obligation." United States v. Mattice, 186 F.3d 219, 228-29 (2d Cir.1999).
Kukafka presented such a defense, essentially asking the jury to find that he did
not act willfully because he was unable to pay. Accordingly, the District Court
properly instructed the jury that "[i]n determining whether the defendant acted
willfully, you must first find that the defendant had the ability to pay the child
support." This instruction conveyed to the jury that it could not find willfulness
unless it had determined that Kukafka could pay the support obligation. See
United States v. Smith, 278 F.3d 33, 40 (1st Cir.2002) ("In the context of the
record as a whole, the instruction directed the jury to determine that Smith had
the ability to pay before it could find that he willfully failed to pay.").

38

Kukafka's contention that the instruction misled the jury is contradicted by the
record. The jury instructions plainly show that the District Court told the jury
that Kukafka's refusal to pay his support obligation had to be "voluntary and

intentional," and that Kukafka had to be aware of "the unlawful nature of his
acts." Moreover, the Court explained that Kukafka had a right to keep enough
money to subsist and to meet his basic personal needs. The Court did not invite
the jury to convict Kukafka if it believed he had some spare money on a given
day. Accordingly, the District Court's instruction was not erroneous.
III. Kukafka's Sentence
39

Finally, Kukafka contends, and the government agrees, that the District Court
mistakenly imposed a two-year concurrent sentence with a $100 special
assessment for Count I of the indictment. Count I charged a violation of 18
U.S.C. 228(a)(1), which carries a maximum prison sentence of six months
and is a Class B misdemeanor. See 18 U.S.C. 228(c)(1); 18 U.S.C. 3559(a)
(7). A Class B misdemeanor carries a special assessment of $10. See 18 U.S.C.
3013(a)(1)(A)(ii). There is no challenge to the two-year sentence imposed on
Count II. Therefore, we will remand the case to the District Court for the sole
and limited purpose of correcting the sentence regarding Count I to reflect the
applicable statutory provisions. See United States v. Dixon, 308 F.3d 229, 236
(3d Cir.2002); 18 U.S.C. 3742(f)(1).

IV. Conclusion
40

For the foregoing reasons, we will affirm the judgment of conviction, and will
remand the case to the District Court to correct the sentence on Count I only.

Notes:
*

Judge Van Antwerpen assumed senior status on October 23, 2006

**

The Honorable John R. Padova, District Judge for the United States District
Court for the Eastern District of Pennsylvania, sitting by designation

In 1997, Esther Bailey began receiving welfare checks in exchange for

assigning her support collection rights to the State. After she made this
assignment, New Jersey requested that Florida enforce Kukafka's child support
obligation and seek collection from Kukafka. Under the Uniform Reciprocal
Enforcement of Support Act ("URESA"), and the more recent Uniform
Interstate Family Support Act ("UIFSA"), Florida agreed to enforce the child
support obligation

The "operative language" of the statute remained the same, and we rely on

cases from both before and after 1998United States v. Bigford, 365 F.3d 859,
863-64 n. 1 (10th Cir.2004).
3

The Act punishes "any person ... who willfully fails to pay a support obligation
with respect to a child who resides in another State," or "any person who ...
travels in interstate or foreign commerce with the intent to evade a support
obligation." 18 U.S.C. 228(a)

InParker we did not explicitly place the Deadbeat Parents Act into Lopez's
second category. Nevertheless, the reasoning of the cases adopted by Parker
makes clear that, under the second Lopez category, the Act regulates "things in
interstate commerce." See Sage, 92 F.3d at 107 ("[The Act] may fairly be
considered a proper exercise of Congress's power under the second category
....") (emphasis added); United States v. Mussari, 95 F.3d 787, 790 (9th
Cir.1996) ("The obligation of a parent in one state to provide support for a child
in a different state is . . . a thing in interstate commerce and falls within the
power of Congress to regulate.") (emphasis added); United States v.
Hampshire, 95 F.3d 999, 1003 (10th Cir.1996) ("Because the [Deadbeat
Parents Act] regulates a court-ordered obligation to pay money in interstate
commerce . . ., we conclude that Congress constitutionally exercised the power
bestowed upon it by the Commerce Clause ....") (emphasis added).

Because the Deadbeat Parents Act is a proper exercise of Congress's power

under the Commerce Clause, Kukafka's Tenth Amendment challenge must fail
as wellSee Parker, 108 F.3d at 31 ("If Congress acts under one of its
enumerated powershere its power under the Commerce Clausethere can be
no violation of the Tenth Amendment.") (quoting Mussari, 95 F.3d at 791).
Notably, the Act does not attempt to regulate matters traditionally left to the
states, as it does not permit a federal court "to revise the domestic relationship
adjudicated by the State courts or to modify any part of a State court decree."
Sage, 92 F.3d at 107; see also United States v. Black, 125 F.3d 454, 462-63 (7th
Cir.1997).

A "Get" is a divorce under Jewish lawor a document a rabbi signs to grant a

divorce. Black's Law Dictionary (8th ed.2004)

Some courts have permitted challenges to the underlying support obligation

based on the state court's lack of personal jurisdictionSee Bigford, 365 F.3d at
872 ("[The Act] allows a defendant to challenge a default child support order on
the basis that the state court that rendered the judgment lacked personal
jurisdiction over the defendant."); Kramer, 225 F.3d at 857 ("[A] defendant
may challenge on collateral attack a default judgment that is entered without
personal jurisdiction.").

Notably, every court of appeals that has addressed merits-based collateral

challenges to prosecutions under the Deadbeat Parents Act has reached the
same conclusionSee United States v. Kerley, 416 F.3d 176, 178 (2d Cir.2005)
("Every circuit that has addressed the issue has stated that defendants in
[Deadbeat Parents Act] prosecutions cannot collaterally challenge the
substantive merits of the underlying support order.").
Kukafka argued to the District Court that it should have instructed the jury on
the Deadbeat Parents Act's "rebuttable presumption," which the District Court
did not doSee 18 U.S.C. 228(b) ("The existence of a support obligation that
was in effect for the time period charged in the indictment ... creates a
rebuttable presumption that the obligor has the ability to pay the support
obligation for that time period."). He does not, however, raise this issue on
appeal. Accordingly, we only address Kukafka's contention that the District
Court erroneously instructed the jury on his ability to pay. We note that, to the
extent that the District Court erred by not instructing the jury on the rebuttable
presumption, such error would be harmless. It could only have benefitted
Kukafka to not have to overcome a rebuttable presumption that he could pay
the obligation.